Over the last several years, it has become common—and entirely lawful—for H-1B beneficiaries who lose their jobs to file a change of status to B-2 if they are unable to secure new employment within the 60-day grace period. This strategy has been openly acknowledged and encouraged by USCIS itself as a way for foreign nationals to remain in a period of authorized stay while exploring lawful options.
Despite this, some employers and their attorneys have recently begun refusing to consider candidates with pending or approved B-2 change of status applications, citing concerns about adjudication sequencing, status validity, and the applicability of the $100,000 Presidential Proclamation fee. This article explains what USCIS actually says, how these cases are adjudicated in practice, and why a properly filed B-2 does not bar a subsequent H-1B approval or trigger the $100,000 fee.
USCIS Has Explicitly Endorsed the H-1B to B-2 Strategy
USCIS has acknowledged that nonimmigrant workers who lose their jobs often misunderstand their options and may wrongly assume they must leave the United States immediately. On its website, USCIS states:
“When nonimmigrant workers are laid off, they may not be aware of their options and, in some instances, may wrongly assume that they have no option but to leave the country within 60 days.”
USCIS then clearly outlines the lawful options available to workers whose employment has ended:
“When a nonimmigrant worker’s employment ends, either voluntarily or involuntarily, they typically may take one of the following actions, if eligible, to remain in a period of authorized stay in the United States:
File an application for a change of nonimmigrant status;
File an application for adjustment of status;
File an application for a ‘compelling circumstances’ employment authorization document; or
Be the beneficiary of a nonfrivolous petition to change employer.”
This guidance leaves no ambiguity. Filing a change of status—commonly to B-2—is not a loophole or gray area. It is an expressly recognized and sanctioned option under USCIS policy.
USCIS Has Anticipated and Addressed the “B-2 Then H-1B” Scenario
USCIS has gone further and directly addressed what happens when an individual with a pending B-2 change of status later finds a new employer willing to file an H-1B petition.
USCIS states:
“Q: Will my pending I-539 change of status application to B-1 or B-2 be prioritized if I find a new employer who files an I-129 petition with a request for premium processing service?
A: If an employer files a Form I-129 petition on your behalf, along with a request for premium processing service, we generally will process the pending I-539 and the I-129 together during the premium processing timeframe and issue concurrent decisions. This means there should be no delay in adjudication of the I-129 because of the pending I-539. No formal request is required for the pending I-539 to be prioritized. If we approve the I-129 petition, including any requested change of status, then you generally will obtain the nonimmigrant status requested on the I-129 petition (not the I-539), and may begin working. You generally would not need to depart the United States to obtain the requested nonimmigrant status in this scenario.”
This language directly contradicts the claim that USCIS is unwilling or unable to adjudicate an H-1B change of status when a B-2 application is pending.
Job Searching While in B-2 Status Is Expressly Permitted
USCIS also makes clear that individuals in B-2 status are permitted to search for employment:
“Q: Can I look for a new job while in B-1 or B-2 status?
A: Yes, searching for employment and interviewing for a position are permissible B-1 or B-2 activities. By statute, however, you may not engage in employment within the domestic labor market while in B-1 status or engage in any employment while in B-2 status. Before beginning any new employment, a petition and request for a change of status from B-1 or B-2 to an employment-authorized status must be approved, and the new status must take effect.”
In other words, USCIS expects individuals in B-2 status to look for work and then transition back to an employment-authorized status once a petition is approved.
Expediting a Pending B-2 Application Is Also an Option
Another point often overlooked in these discussions is that USCIS allows applicants to request expedited adjudication of a pending B-2 change of status application in appropriate circumstances.
USCIS states:
“You may request that USCIS expedite the adjudication of an application, petition, request, appeal, or motion that is under USCIS jurisdiction.”
USCIS considers expedite requests on a case-by-case basis and generally requires documentation. The decision to expedite is within the sole discretion of USCIS, and expediting means that the case may be adjudicated ahead of others, including those filed earlier.
USCIS lists several criteria that may be considered when deciding an expedite request, including:
“Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to timely file the benefit request or to timely respond to any requests for evidence.”
Addressing Employer Concerns About Adjudication Sequencing
Some employers and their attorneys worry about a scenario in which USCIS approves the H-1B change of status first and later approves the B-2 application, potentially overriding the H-1B approval.
While this concern is theoretically valid, it is easily managed and does not make the filing strategy improper.
If USCIS approves the H-1B while the B-2 remains pending, the B-2 application can be promptly withdrawn. USCIS routinely honors withdrawals, which prevents issuance of a conflicting B-2 approval or I-94 after the H-1B approval. Even if USCIS treats the B-2 as withdrawn without issuing an interim I-94, the individual’s stay remains authorized because the B-2 was properly pending.
The $100,000 Proclamation Fee Does Not Apply to These Cases
A growing source of employer hesitation is the fear that these cases trigger the $100,000 fee under the September 2025 Presidential Proclamation.
USCIS has directly rejected this interpretation and states:
“The Proclamation also does not apply to a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, that is requesting an amendment, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension. Further, an alien beneficiary of such petition will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.”
This language is unequivocal. If USCIS grants a change of status inside the United States, the $100,000 fee does not apply. Approval of a B-2 application does not trigger the fee, nor does it convert a subsequent H-1B change of status filing into a fee-covered case.
Bottom Line
USCIS has explicitly endorsed the strategy of changing status from H-1B to B-2 following job loss and then changing back to H-1B upon securing new employment. USCIS adjudicates these cases routinely.
Even if the B-2 is pending, an H-1B change of status can be filed and approved. If the H-1B is approved first, the B-2 can be withdrawn. The individual remains in authorized stay, and the $100,000 fee does not apply.
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